Niall Ferguson: The Darwinian Economy

Transcript

(Recorded at The New-York Historical Society, New York City, and first broadcast on BBC Radio 4 and the BBC World Service on Tuesday, 26 June 2012.)

Sue Lawley: Hello and welcome to New York, to the second of the BBC’s Reith Lectures. We’re at the city’s oldest museum – the New-York Historical Society – which for 200 years has been exploring and explaining the history of this dynamic metropolis. The USA is the academic headquarters of this year’s lecturer – Neill Ferguson, who is a professor of history at Harvard.

His subject is the rule of law and its enemies. His argument, set out in his first lecture, is that Western civilisation, dominant for the last 500 years, now faces a crisis, as the institutions that made it so powerful begin to fail.

Today, in his second lecture he’s wading into the heart of things, with his controversial views of the recent near-collapse of our banking system – the first signs of which were seen here in the United States with the failure of the sub-prime mortgage market.

As people cry out for more regulation to prevent it all happening again, he comes up with a rather different view. To give his historical analysis of what he calls ‘The Darwinian Economy’, please welcome Neill Ferguson.

(Audience Applause)

Niall Ferguson: What is the biggest problem facing the world economy today? To listen to some people, you might think the correct answer is insufficient financial regulation. According to a number of influential commentators, the origins of the financial crisis that began in 2007 – and still does not seem to be over – lie in decisions dating back to the early 1980s that led to a substantial deregulation of financial markets. In the good old days, we are told, banking was “boring”.

In the United States, the Glass-Steagall Act of 1933 separated the activities of commercial and investment banks until its supposedly fateful repeal in 1999. Deregulation in the two decades after the election of Ronald Reagan led to the “disappearance” of thrift from American society and to excessive risk-taking by banks. Deregulation had no macroeconomic benefits; in fact, productivity declined.

In making this argument, the economist Paul Krugman is by no means alone. Simon Johnson, the former chief economist of the IMF, and even Chicago’s Richard Posner, the lawyer and economist, have penned similar critiques.

The first draft of the history of the financial crisis is in, and here’s what it says: deregulation was to blame. Unfettered after 1980, the financiers ran amok; banks blew up and had to be bailed out. Now they must be fettered once again.

Well, as will become clear, I am not here to whitewash the bankers. But I do believe this story is mostly wrong. For one thing, it is hard to think of a major event in the U.S. crisis – beginning with the failures of Bear Stearns and Lehman Brothers – that could not equally well have happened with Glass-Steagall still in force . The same goes for Countrywide, Washington Mutual and Wachovia. For another, the claim that the economic performance of the U.S. economy before Ronald Reagan was superior to what followed because of the tighter controls on banks before 1980 is simply laughable. There were a few other things influencing productivity growth, after all: changes in technology, education and globalisation, to name just three.

To a British listener, if not to an American, there is something especially implausible about the story that regulated financial markets were responsible for rapid growth, while deregulation caused crisis. British banking was also tightly regulated prior to the 1980s. Yet there was anything but spectacular economic progress in this period.

On the contrary, the 1970s were arguably Britain’s most financially disastrous decade since the 1820s, witnessing not only a major banking crisis, but also a stock market crash, a real estate bubble and bust and double-digit inflation - all rounded off by an International Monetary Fund bailout in 1976.

In my view, the lesson of the 1970s is not that deregulation is bad, but that bad regulation is bad, especially in the context of bad monetary and fiscal policy. And I believe the same can be said of our crisis, too. The financial crisis that began in 2007 had its origins precisely in over-complex regulation. A serious history of the crisis would need to have at least five chapters on its perverse consequences:

Firstly, the Basel Committee on Banking Supervision’s 1988 Accord allowed very large quantities of assets to be held by banks relative to their capital, provided these assets were classified as low risk.

Secondly, from 1996 the Basel rules were modified to allow firms effectively to set their own capital requirements on the basis of their internal risk estimates. In practice, risk weightings came to be based on the ratings given to securities – and later to structured financial products – by the private rating agencies.

Thirdly, central banks – led by the Federal Reserve – evolved a peculiarly lopsided doctrine of monetary policy, which taught that they should intervene by cutting interest rates if asset prices abruptly fell, but should not intervene if they rose rapidly, so long as the rise did not affect public expectations of something called “core inflation” - which excludes changes in the prices of food and energy and wholly failed to capture the bubble in house prices.

Fourthly, the U.S. Congress passed legislation designed to increase the percentage of lower income families – especially minority families – that owned their own homes. The mortgage market was highly distorted by the so-called “government-sponsored entities” Fannie Mae and Freddie Mac. In effect, financially weak households were encouraged to place large, leveraged, unhedged and unidirectional bets on the housing market.

A final layer of market distortion was provided by the Chinese government, which spent literally trillions of dollars worth of its own currency to prevent it from appreciating relative to the dollar. Because much of what they bought was U.S. government or government agency debt, the yields on these securities were artificially held low. Because mortgage rates are closely linked to Treasury yields, “Chimerica” – as I christened this strange economic partnership between China and America – thus helped further to inflate an already bubbling property market.

The only chapter in this history that really fits the “blame deregulation” thesis is the non-regulation of the market in the derivatives such as credit default swaps. The insurance giant AIG came to grief because its London office sold vast quantities of mispriced insurance against outcomes that properly belonged in the realm of unmeasurable uncertainty. However, I don’t believe this can be seen as a primary cause of the crisis. Banks were the key to the crisis, and banks were regulated.

The issue is whether or not additional regulation of the sort that is currently being devised and implemented can improve matters by reducing the frequency or magnitude of future financial crises. I think it is highly unlikely. Indeed, I would go further. I think the new regulations may have precisely the opposite effect.

The problem we are dealing with here is not inherent in financial innovation. It is inherent in financial regulation. Private sector models of risk management were undoubtedly imperfect, as the financial crisis made clear. But public sector models of risk management were next to non-existent. Because legislators and regulators acted with an almost complete disregard for the law of unintended consequences, they inadvertently helped to inflate a real estate bubble in countries all over the developed world.

The question for me is not: “Should financial markets should be regulated?” There is in fact no such thing as an unregulated financial market, as any student of ancient Mesopotamia – or Adam Smith’s Scotland – knows.

Without rules to enforce the payment of debts and punish fraud, there can be no finance. Without restraint on the management of banks, some are very likely to fail in a downturn because of the mismatch between the durations of assets and liabilities that has been inherent in nearly all banking since the advent of the fractional reserve system. So the right question to ask is: “What kind of financial regulation works best?”

Today, it seems to me, the balance of opinion favours complexity over simplicity; rules over discretion; codes of compliance over individual and corporate responsibility. I believe this approach is based on a flawed understanding of how financial markets work. It puts me in mind of the great Viennese satirist Karl Kraus’s famous quip about psychoanalysis, that it was “the disease of which it purported to be the cure” I believe excessively complex regulation is the disease of which it purports to be the cure.

“We cannot control ourselves. You have to step in and control [Wall] Street.” Those were the words of John Mack, former chief executive of the investment bank Morgan Stanley, speaking here in New York in November 2009. The legislators of the U.S. congress obliged Mr Mack by producing the Wall Street Reform and Consumer Protection Act of July 2010 - henceforth the Dodd-Frank Act, after the names of its two principal sponsors in the Senate and House, respectively.

The rule of law has many enemies. One of them is bad law. Dodd-Frank is a near-perfect example of excessive complexity in legislation. The act requires that regulators create 243 new rules, conduct 67 studies - to see if the rules are necessary - and issue 22 periodic reports. It eliminates one regulator and creates two new ones. It addresses everything from gender balance on regulatory agencies to carbon trading to conflict diamonds from the Congo. And it spends nearly 80 pages setting it out in minute detail how a systematically, or systemically important financial institution - or “SIFI” - could be wound up with less disruption than the bankruptcy of Lehman Brothers caused. Perhaps SIFI should be pronounced ‘sci-fi’.

It boils down to this. If the Treasury Secretary and the Federal Deposit Insurance Corporation agree that a financial firm’s failure could cause general instability, they can seize control of it. If the firm objects, the courts in Washington have precisely one day to decide if the decision was correct. It is a criminal offense to disclose that such a case is being heard. How this quite extraordinary procedure is an improvement on a regular bankruptcy is beyond me.

As I have suggested, it was the most regulated institutions in the financial system that were in fact the most disaster-prone: big banks on both sides of the Atlantic, not hedge funds. It is more than a little convenient for America’s political class to have the crisis blamed on deregulation and the resulting excesses of bankers. Not only does that neatly pass the buck. It also creates a justification for more regulation. But the old Latin question is apposite here: quis custodiet ipsos custodes? Who regulates the regulators?

Now consider another set of regulations. Under the new Basel III Framework for bank capital standards, which are due to come into force between next year and the end of 2018, the world’s 29 largest global banks will need to raise an additional $566 billion in new capital or shed around $5.5 trillion in assets.

According to the rating agency Fitch, this implies a 23 per cent increase relative to the capital the banks had at the end of 2011. It is quite true that big banks became under-capitalised – or excessively leveraged, if you prefer that term – after 1980. But it is far from clear how forcing banks to hold more capital or make fewer loans can be compatible with the goal of sustained economic recovery, without which financial stability is very unlikely to return here, much less in Europe.

Lurking inside every such regulation is the universal law of unintended consequences. What if the net effect of all this regulation is to make the SIFIs more rather than less systemically risky? One of many new features of Basel III is a new requirement for banks to build up capital in good times, so as to have a buffer in bad times. This innovation was widely hailed some years ago when it was introduced by Spanish bank regulators. Enough said.

In my first Reith Lecture, I tried to show the value of Mandeville’s Fable of the Bees as an allegory of the way good political institutions work. Now let me introduce a different biological metaphor. In his autobiography, Charles Darwin himself explicitly acknowledged his debt to the political economists of his day, notably Thomas Malthus, whose Essay on the Principle of Population he read “for amusement” in 1838.

“Being well prepared,” Darwin recalled “to appreciate the struggle for existence which everywhere goes on[,] from long-continued observation of the habits of animals and plants, it at once struck me that under these circumstances favourable variations would tend to be preserved, and unfavourable ones to be destroyed. Here, then, I had at last got a theory by which to work.”

There are indeed more than merely superficial resemblances between a financial market and the natural world as Darwin came to understand it. Like the wild animals of the Serengeti, individuals and firms are in a constant struggle for existence, a contest over finite resources. Natural selection operates, in that any innovation - or mutation, in Nature’s terms - will flourish or will die depending on how well it suits its environment.

Sometimes, as in the natural world, the financial evolutionary process has been subject to big disruptions in the form of geopolitical shocks and financial crises. The difference is, of course, that whereas giant asteroids come from outer space, financial crises originate within the system. The Great Depression of the 1930s and the Great Inflation of the 1970s stand out as times of major discontinuity, with “mass extinctions” such as the bank panics of the 1930s and the Savings and Loans failures of the 1980s.

A comparably large disruption has clearly happened in our time. But where are the mass extinctions? The dinosaurs still roam the financial world. The explanation is that, whereas evolution in biology takes place in a pitiless natural environment, evolution in finance occurs within a regulatory framework where, to adapt a phrase from anti-Darwinian creationists – “intelligent design” - plays a part.

But just how intelligent is this design? The answer is: Not intelligent enough to second-guess the evolutionary process. In fact, stupid enough to make a fragile system even more fragile.

Another and related way of thinking about the financial system is as a highly complex system, made up of a very large number of interacting components that are asymmetrically organised in a network. This operates somewhere between order and disorder – on “the edge of chaos”. Such complex systems can appear to operate quite smoothly for some time, apparently in equilibrium, in reality constantly adapting as positive feedback loops operate. But there comes a moment when they “go critical”. A slight perturbation can set off a “phase transition” from a benign equilibrium to a crisis.

This is especially common where the network nodes are “tightly coupled”. When the interrelatedness of a network increases, conflicting constraints can quickly produce a “complexity catastrophe”.

All complex systems in the natural world – from termite hills to large forests to the human nervous system – share certain characteristics. A small input to such a system can produce huge, unanticipated changes. Causal relationships are often non-linear. Indeed, some theorists would go so far as to say that certain complex systems are wholly non-deterministic, meaning that it’s next to impossible to make predictions about their future behaviour based on past data. Will the next forest fire be tiny or huge, a bonfire or a conflagration? We can’t be sure. The same “power law” relationship seems to apply to earthquakes and epidemics.

Well, it turns out that financial crises are much the same. And this really shouldn’t surprise us. As Andrew Haldane of the Bank of England has pointed out, Wall Street and the City of London are part of one of the most complex systems that human beings have ever made. And the combination of concentration, interbank lending, financial innovation and technological acceleration makes it a system especially prone to crash.

Once again, however, the difference between the natural world and the financial world is the role of regulation. Regulation is supposed to reduce the number and size of financial forest fires. And yet, as we have seen, it can quite easily have the opposite effect. This is because the political process is itself somewhat complex. Regulatory bodies can be captured by those whom they are supposed to be regulating; not least by the prospect of well-paid jobs should the gamekeepers turn poachers. They can also be captured in other ways – for example, by their reliance on the entities they regulate for the very data they need to do their work.

In his most recent work, the statistician and options trader turned philosopher Nassim Taleb asks a wonderful question: “What is the opposite of fragile?”

The answer is not “robust” or “strong”- which is probably what you were thinking - because those words simply mean less fragile. The true opposite of fragile is anti-fragile.

A system that becomes stronger when subjected to perturbation is anti-fragile. The point is that regulation should be designed to heighten anti-fragility. But the regulation we are contemplating today does the very opposite: because of its very complexity – and often self-contradictory objectives – it is pro-fragile.

Over-complicated regulation can indeed be the disease of which it purports to be the cure. Just as the planners of the old Soviet system could never hope to direct a modern economy in all its complexity, for reasons long ago explained by Friedrich Hayek and Janos Kornai, so the regulators of the post-crisis world are doomed to fail in their efforts to make the global financial system crisis-free. They can never know enough to manage such a complex system. They will only ever learn from the last crisis how to make the next one. Is there an alternative? I believe there is. But I believe we need to go back to the time of Darwin to find it.

In Lombard Street, published in 1873, the editor of the Economist Walter Bagehot described with great skill the way in which the City of London had evolved in his time. Bagehot understood that, for all its Darwinian vigour, the British financial system was complex and fragile:

“In exact proportion to the power of this system’, he observed, ‘is its delicacy – I should hardly say too much if I said its danger … [E]ven at the last instant of prosperity, the whole structure is delicate. The peculiar essence of our financial system is an unprecedented trust between man and man; and when that trust is much weakened by hidden causes, a small accident may greatly hurt it, and a great accident for a moment may almost destroy it.”

No one has ever given a better description of how a bank run happens than Bagehot. Those unfamiliar with Lombard Street had to find out for themselves in 2007, at the time of the runs on Northern Rock and Countrywide - and again this year, when it was the turn of the Spanish Bankia to lose the confidence of its depositors.

In theory, Bagehot would have preferred a system in which each institution had to look after itself by maintaining a reserve against contingencies. But in practice the London market had evolved in such a way that there was only one ultimate reserve for the entire City and that was the Bank of England’s - “the sole considerable unoccupied mass of cash in the country.” As in our time, in other words, the central bank - and, behind it, the government that called it into being constituted – is the last line of resistance in time of panic.

By reviewing half a century of financial crises, Bagehot brilliantly showed how the Bank of England’s role as custodian of the nation’s cash reserve was quite different from its role as defined by statute or, indeed, as understood by the very men running it.

There was, as in our time, uncertainty about which securities it would accept as collateral in a crisis. The Bank’s governance structure was opaque. Its governor and directors themselves were not bankers. In those days they chose merchants; nowadays we prefer academics – which not everyone would regard as an improvement. They barely coped when a SIFI called Overend Gurney blew up in 1866.

Bagehot’s famous recommendation was that in a crisis the central bank should lend freely at a penalty rate: “Very large loans at very high rates are the best remedy …”

Nowadays we follow only the first half of his advice, in the belief that our system is so leveraged that high rates would kill it. Bagehot’s rationale was to “prevent the greatest number of applications by persons who do not require it”.

Watching all banks, strong and weak alike, gorge themselves on today’s seemingly limitless supply of loans at near-zero rates, I see what he meant.

We also neglect the rest of what Bagehot said, and in particular the emphasis he laid on discretion as opposed to set rules. In the first place, Bagehot stressed the importance of having Bank directors with considerable market experience:

“Steady merchants,” he wrote, “always know the questionable standing of dangerous persons; they are quick to note the smallest signs of corrupt transactions.”

Executive power should be conferred on a new, full-time Deputy Governor acting as a kind of permanent under-secretary. And the advisory Court should be selected so as “to introduce … a wise apprehensiveness”.

Secondly, Bagehot repeatedly stressed, as he put it, “the cardinal importance of [the Bank of England’s] always retaining a great banking reserve”. But he was emphatic that the size of the reserve could not be specified by some automatic rule, the way the banknote circulation was under the 1844 Bank Charter Act: “No certain or fixed proportion of its liabilities can in the present times be laid down as that which the Bank ought to keep in reserve.”

The ideal central Bank would target nothing more precise than an “apprehension minimum”, which “no abstract argument and no mathematical computation will teach to us”:

“And we cannot expect that they should,” he went on “credit is an opinion generated by circumstances and varying with those circumstances. The state of credit … can only be known by trial and inquiry. And in the same way, nothing can tell us what amount of ‘reserve’ will create a diffused confidence; on such a subject there is no way of arriving at a just conclusion except by incessantly watching the public mind, and seeing at each juncture how it is affected.

Nor should there be predictability in the Bank’s discount rate, the rate at which it lent against good quality commercial paper. The rule that “the Bank of England should look to the market rate and make its own rate conform to that … was … always erroneous”, according to Bagehot. The “first duty” of the Bank was to use the discount rate to “protect the ultimate cash of the country”. This too of course implied a discretionary power, since the desirable size of the reserve was not specified by any rule.

Well, there are some today, like my friends Larry Kotlikoff and John Kay, who see the only salvation in a root and branch structural reform of our financial system: “narrow banking” of some sort, if not the replacement of banks altogether.

I can see the intellectual appeal of such arguments. In theory perhaps it would be much better if big banks were chopped up, leverage ratios were drastically reduced and the interconnections between deposit takers and risk takers were also reduced. But, like Bagehot, I take the world as I find it, and I do not expect to see in my lifetime a wholesale abandonment of the current model of “too big to fail” institutions backstopped by the central bank and, if necessary, the public purse.

Our task, as Bagehot put it, is “to make the best of our banking system, and to work it in the best way that it is capable of. We can only use palliatives, and the point is to get the best palliative we can.”

“The problem is delicate,” as Bagehot candidly concluded his great work, and “the solution is varying and difficult”.

It remains so today. But I believe a return to Bagehot’s first principles would not be a bad starting point:

First, strengthen the central bank as the ultimate authority in both the monetary and supervisory systems.

Second, ensure that those in charge at the central bank are apprehensive as well as experienced, so that they will act when they see excessive credit growth and asset price inflation.

Third, give them considerable latitude in their use of the principal central banking tools of reserve requirements, interest rates changes and open market securities purchases and sales.

Fourth, please teach them some financial history - as Bagehot taught his readers.

Finally, a point Bagehot didn’t need to make - because in his time it was a matter of course – we must ensure that those who fall foul of the regulatory authority pay dearly for their transgressions. Those who believe this crisis was caused by deregulation have misunderstood the problem in more than one way. Not only was misconceived regulation a large part of the reason. There was also the feeling of impunity that came not from deregulation but from non-punishment.

There will always be greedy people in and around banks. After all, they are where the money is – or is supposed to be.

But greedy people will only commit fraud or negligence if they feel that their misdemeanour is unlikely to be noticed or severely punished. The failure to apply regulation – to apply the law – is one of the most troubling aspects of the past five years. In the United States, the list of those who have been sent to jail for their part in the housing bubble, and all that followed from it, remains laughably short.

Voltaire famously said that the British periodically executed an admiral pour encourager les autres. All the detailed regulation in the world will do less to avert a future financial crisis than the clear and present danger in the minds of today’s bankers that, if they transgress in the eyes of the authority on whom their business ultimately depends, then they could go to prison.

Instead of exhausting ourselves drawing up hopelessly complex codes of “macro-prudential” or “counter-cyclical” regulation, let us go back to Bagehot’s world, where individual prudence, rather than mere compliance, was the advisable course, precisely because the authorities were powerful and the crucial rules unwritten.

I began this lecture by contradicting the proponents of stricter regulation, only to end it by advocating the exemplary incarceration of bad bankers. I hope you now see why these positions are not contradictory but complementary.

A complex financial world will be made less fragile only by simplicity of regulation and strength of enforcement.

In my next Reith lecture I shall consider at a more general level the ways in which the rule of law itself, broadly defined, has degenerated in our Western societies in our time. In the realm of regulation, as I have said, we ought to be going back to Bagehot. But has the rule of law in the English-speaking world inadvertently gone back to Bleak House? Has the rule of law degenerated into the rule of lawyers?

(Audience Applause)

SUE LAWLEY: Niall Ferguson thank you very much indeed. If I dare venture a summary: we need simple regulation for our financial institutions with a strong central bank at the helm, manned by people of wisdom and experiences – oh, and there should be proper punishments for those who transgress. Let me therefore turn to our audience here in the New-York Historical Society and ask “what’s wrong - or indeed what’s right with that?”

RICHARD SYLLA: Richard Sylla. I’m a financial historian like Niall. I agree with you that regulation should be simpler rather than more complex. And we know that the bankers pay a lot of money to campaign contributions and they pay a lot of money for the lobbyists in Washington, and it seems to me one version of what happened in the last couple of years is that these campaign contributions and lobbyists have made the regulations more complex. What would you do about that problem?

NIALL FERGUSON: Well thanks, Dick. It’s a pleasure to get a question from the leading financial historian of the United States. And I think what you describe is all too true. One can’t really explain the crisis purely in terms of Wall Street, as I’ve been arguing. Nor can you explain it purely in terms of Washington. It’s the symbiotic relationship that’s developed between the two that really is the problem, and the complexity of regulation I think is in large measure the result of this interplay with lobbyists as the crucial intermediaries.

You would have to go back a long way, it seems to me, in American history to find comparable levels of, let’s call it by its real name – corruption - in the legislative process. The difference is that in those days the powers of the federal government were much smaller than they are today, particularly the powers over the economy. So this concerns me hugely and I think it is in itself an argument for simplicity: that if the complexity is a result of systematic gaming of the legislative process, then the best defence for us, the taxpayers and citizens, is very clearly to make the regulation simple. I have no doubt at all that the reason that the Dodd-Frank Bill is so monstrously long… I must say I’m one of the very few people I’ve ever met who’s read it. (Audience laughter) I had the worst weekend of my life reading it from cover to cover. I felt duty bound to do so. It’s part of a smoke and mirrors strategy. If you make the thing so complex, perhaps it won’t work.

SUE LAWLEY: I’m going to take a question from over on our left.

CARNE ROSS: My name is Carne Ross. Amongst other things, I’m a former British diplomat and a member of the Occupy Wall Street Working Group on Alternative Banking here in New York City. Do we have any reason to believe that a central bank would be any less vulnerable to the enormous political power of the banking industry? If one’s answer to that is the scepticism that I feel about your solution, surely we should take much more radical steps to re-appropriate what is essentially a public good - namely the means of exchange - that has in fact been appropriated by a viciously aggressive and greedy industry. In other words, change the nature of banking, make it completely different from our current conception, make it democratic, make it transparent, build cooperative banks that are owned by its customers, completely change our model.

SUE LAWLEY: (over)… Okay. Niall Ferguson?

NIALL FERGUSON: Well, the interesting thing is that we’ve actually tried that in the past. One of the great ambitions of the revolutionaries of the post-First World War period was to take over and entirely control the financial institutions of Russia - and indeed of any other country where these revolutions occurred. And the result was a disaster because what happened when the banking system was brought under the control of the revolution was usually, first, hyperinflation and then financial repression. I think it’s extremely important to recognise that there are two threats at least to the independence of the monetary authority of the sort that I’m describing.

One we’ve already discussed, which is the threat from the vested interests that are supposed to be regulated, but the other I’m afraid is from the populist politicians who, some of whom at least, have endorsed the Occupy Movement.

I mean populist solutions to financial crises have been tried and have failed disastrously. That was one of the stories of the mid-20th Century. We need to learn from that history. Unfortunately I see very little evidence of knowledge of financial history in the Occupy Movement. It’s exactly the same ignorance I encounter in much of the financial world alas.

SUE LAWLEY: You’d better come back on that...

CARNE ROSS: Well being patronised aside …

NIALL FERGUSON: (over)… well British diplomats… British diplomats are very experienced at that sort of thing. (Audience laughter)

CARNE ROSS: We can take this outside if you wish. (Audience laughter) I don’t think you’re right, of course. I think that actually there is scope in the 21st Century to build new kinds of banks. I think your analysis that banking is a complex system is exactly right, but you don’t take it far enough. Complex systems don’t respond to any kind of top down authority or management at all, as you would know if you’d studied complexity science - as perhaps you have. In fact, complex systems require agent-driven approaches, to be managed. What that means in the banking sector is that we must all ourselves adopt normative behaviours to produce better banking - look at our banks, build our own banks, make them democratic, make them transparent. This is radically different.

SUE LAWLEY: Okay…

NIALL FERGUSON: (over) Can I …

SUE LAWLEY: (over) Quick comment, if you will, because I want to move.

NIALL FERGUSON: (over) … briefly respond? I mean one of the reasons I alluded to the work of Larry Kotlikoff is that those radical solutions out there - and as I said in my lecture, they deserve to be taken seriously but I think they are a counsel of perfection - I take the world as I find it, as Bagehot did, and try to work with the institutions we have.

SUE LAWLEY: Okay, a question here, and then I’m going to go to one at the very back there.

JIM DELISLE: Hi, my name is Jim Delisle and I am an evil short seller. (Audience laughter) And… you ended by saying that rule of law seems to have become the rule of lawyers. And that calls into question whether you’re supporting… or it doesn’t really call into question, it makes it quite obvious that you believe that rule of principles are broader basis instead of trying to get around laws knowing what the laws are that people are trying to get around and catching them in the process.

SUE LAWLEY: (over) Can we have a question, please?

JIM DELISLE: The question is this: if we go from a rule of lawyers, who will be smart enough on the other side of the fence to catch the people who are doing the wrong things when all the smart people are paid to be on the other side of the fence?

NIALL FERGUSON: A short seller, but not a short questioner, but I think it’s a … (Audience Laughter)… it’s a good question, none-the-less. I mean part of what inspired me to suggest these lectures and come up with the title The Rule Of Law and Its Enemies is a sense that it is extremely hard in a world of very complex legislation and regulation in which the legal profession has powerful incentives, just as it did in Victorian times, to make the legislation complex.

I mean let’s face it, the principal beneficiaries of something like Dodd-Frank are lawyers. I mean, they gain because the business of explaining to financial institutions what the heck this means in practice and how on earth to be compliant is going to keep Wall Street law firms in clover for decades to come. So that of course gets me into the subject of my next lecture.

SUE LAWLEY: Going to our question over there…

FARAI CHIDEYA: Hi, my name is Farai Chideya. I’m a contributor to New York Public Radio and an author, and this spring I was a fellow at Harvard’s Institute of Politics. In fact, when you look at the lending to minorities, you find that a vast number of the people, at least a third, that were pushed into sub-prime loans qualified for regular loans. And as you’re talking about regulation, I can’t help but think about ordinary families, many of whom I’ve interviewed on the road, who’ve lost their homes because they didn’t understand the contracts they were signing. Dodd-Frank has many things against it that are not to be recommended, but it does call for a simplicity of language in contracts between individuals and lenders.

NIALL FERGUSON: In 2006 I spent a considerable amount of time travelling around what you might call sub-prime America - in Memphis, Tennessee, for example, in Detroit. Before the crisis began, I actually went and I met with people who had these mortgages - often in minority neighbourhoods - and I talked to them about the problems that they were facing and I looked at some of the agreements that they had signed. So I don’t want you to get the idea that I considered these things from the lofty heights of Harvard University or 35,000 feet in the air.

But I think it had its origins in some, probably, well intentioned legislation. Both parties came to the view that homeownership was just a good thing per se and had social payoffs. I can even remember my colleague at Harvard - Skip Gates, Professor of African American Studies - writing a euphoric op-ed saying just how terrific it was that home ownership was rising among minority communities, not realising that this was in fact a financial disaster for many of these families. I couldn’t agree more with you that simplicity of language in mortgage agreements is highly desirable and easily attainable. The more we move in the direction of standardised mortgage agreements, the better, and that was something that went horribly awry in the sub-prime crisis.

GLEN LOUIS: Hi, I’m Glen Louis. I’m in the investment business. You did not refer to the Volcker Rule, although I assume that, from what you’ve said, you probably wouldn’t be a proponent of it. And yet it seems to me, given your argument, that the implementation of the Volcker Rule will tend to shrink these very large institutions and push some of the riskiest activities in which they engage into other institutions, hedge funds, and essentially diffuse some of that risk into the system. So, therefore, I would think that there are lots of parts of the Volcker Rule that you would support even though it is obviously more regulation.

SUE LAWLEY: (over) Tell us, tell us in one nubby sentence what the Volcker Rule is first.

NIALL FERGUSON: For the benefit of those not steeped in these matters as we are, I mean the Volcker Rule in its original form was that there should not be proprietary trading by large financial institutions, by what we now call the SIFIs, and that this kind of activity should be conducted separately. This is part of I guess a kind of born again Glass-Steagall - an attempt to create some kind of division between the basic activities, the utility function of a bank, and its more risky functions. And I think that the intention was admirable. I have the highest respect for Paul Volcker. In some ways he is Bagehot’s ideal central banker and the United States was very lucky to have him in that role. The problem is that making the Volcker Rule work in legislation and regulation is extremely difficult because how can you tell proprietary trading from hedging? That’s the fundamental problem - that it’s extremely hard to draw that line - and I don’t think Dodd-Frank succeeds in doing that. But I think that the intention is good. Just as - and it should be mentioned, I omitted it for the sake of brevity - what the Vickers Report in Britain has tried to do is a similar kind of division between the utility function of the bank and the more risk-taking function of a bank. I think that is the right way to go and in some ways it’s laudable, but it turns out to be extremely difficult to do in practice.

SUE LAWLEY: I’ve got a lot of hands here so keep it short if you will please.

JAMES TISCH: My name is James Tisch and I run a New York Stock Exchange company here in New York. Niall, in the middle of your lecture you talked about how all these bankers did terrible things and none of them have been thrown in jail. Lord only knows that there have been lots of prosecutors who have been looking very carefully, wanting to throw them in jail, and in fact I think the silence is deafening. And then at the end you talk instead about simplifying the rules and creating this omnipotent regulator - to me akin to Javert of Les Miserables (Audience Laughter) - and you want this Javert with these much shorter, less definitive rules to throw the bankers after they have bad results into jail. And my question is: is that the kind of rule of law that you really want to see?

NIALL FERGUSON: Thank you, Jim. I should disclose that as the Tisch Professor of History, I have a certain vulnerability to questions from (Audience Laughter) from James Tisch, and maybe the simplest thing is simply to agree and (Audience Laughter) and shut up, but I won’t.

The notion is definitely not retrospective lynch mob justice. Far from it. I mean I think part of what’s puzzling to many ordinary people is how a man could run a financial institution, could claim as chief executive the highest compensation of anybody in the US financial industry, could blow that institution up and could face nothing more than a fine of $67 million, which he didn’t himself have to pay - it was paid for by the company that had taken over his bankrupt company. Some of you probably know who I’m talking about. Now if the law thinks that’s okay, if the law thinks that that kind of behaviour is legitimate, the law is an ass. That’s … that’s the first point that I want to make. But …

SUE LAWLEY: (over) So you do want to criminalise it?

NIALL FERGUSON: It’s criminal already, Sue. The question is what the punishment should be. And if the punishment is just pecuniary …

SUE LAWLEY: (over) No, it’s not … it’s not fraud. I mean what are they guilty of? (Ferguson tries to interject) They’re guilty of putting money, our money at risk.

NIALL FERGUSON: (over) There are two separate issues here. One is whether fraud has taken place or not. And Jim is quite right: it proves extremely difficult to prove fraud in these cases, which suggests that there is something defective in the law of covering fraud. One.

Two, there are also these civil suits because clearly from the point of view of the shareholders these businesses were catastrophically mismanaged and negligently mismanaged. Now if we cannot nail these people, it seems to me extraordinarily difficult to impose any kind of moral ethos on the financial world. Compliance is very different from doing the right thing.

That’s the disjunction that our over complex legislative system has created. A regulatory system of enormous complexity removes the need to ask are we doing the right thing.

ANDREA BONASERA: Oh hi, I’m Andrea Bonasera. I’m a homemaker. How is high frequency trading and the dark pools of money changing the game and how can the common man unplug from this financial matrix so we’re not affected by something like that ten point drop because of a high frequency trade that went awry?

NIALL FERGUSON: There is no question that the time horizon in the financial world has shortened to the point of being measurable in microseconds and that this is a dangerous thing, and the more the automation proceeds, I think the more fragile this complex system becomes whether it’s high frequency trading or just the rampant short-termism of people who measure their results on a daily if not hourly basis.

What can we do? There is actually an alternative model. I wrote a history of the Rothschild Bank - a bank that’s history stretches over two hundred years. Private banking has been characterised by a radically different approach to capitalisation and to time frame for centuries now and one way of thinking about this is that we need to see new banks with the old style. One of the things that worries me about the financial crisis is that there are so few new banks being created, but the kinds of banks that should be created are relatively small, have their owners running them, are well capitalised and are not engaged in the kind of high risk activities that we’re describing. Why do these banks not get created? Because the “too big to fail” institutions compete them out of existence before they’ve even got started. That’s what we need: new banks run rather in the way that Walter Bagehot would have approved of.

SUE LAWLEY: And that’s the answer, is it, to where … how the common man should disengage from the system?

NIALL FERGUSON: (over) There are ways, of course there are, luckily - and this is particularly true in the United States. There are lots of small banks that still engage - I have my mortgage with one of them - that still engage in relatively straightforward, uncomplicated finance based on the things that Bagehot talked about: trust, a personal relationship. And that, it seems to me, remains the heart of sustainable finance. You can call it ecological or you can simply call it human, but there’s no question that in the wake of this crisis - which, as I said early on in the lecture is not over and may yet have fresh shocks in store for us - there is an urgent need for us to go back to smaller financial institutions, to vote with our feet and with our dollars.

CARNE ROSS: (over/off mic.) Neil, that’s what we’re trying to do in the Occupy Group. You should join us. (Audience Laughter)

SUE LAWLEY: A quick off-mic call for Niall Ferguson to join the Occupy Group. It may never happen. (Audience Laughter). Time to call a halt. Next week we’ll be back in London where, having first targeted our political system and today our financial regulatory system, Professor Ferguson will have his sight on the law itself. He’ll be asking how far we’re experiencing, on both sides of the Atlantic, a subtle degeneration in the rule of law. Until then, Niall Ferguson, BBC Reith Lecturer 2012 thank you very much indeed. And from the New-York Historical Society goodbye.